United States
Securities and Exchange Commission
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Information to be Included in Statements Filed Pursuant to § 240.13d-1(a) and
Amendments Thereto Filed Pursuant to § 240.13d-2(a)
Under the Securities Exchange Act of 1934
(Amendment No. )*
Novan, Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
66988N106
(CUSIP Number)
Padraic Roche
Company Secretary
Malin Corporation, plc
2 Harbour Square
Crofton Road
Dun Laoghaire
Co. Dublin
Ireland
353-1- 901 5701
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
September 26, 2016
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 66988N106 | 13D | Page 1 of 7 Pages |
1 | NAMES OF REPORTING PERSONS
Malin Life Sciences Holdings Limited | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS
OO | |||||
5 | Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) ☐
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Ireland | |||||
NUMBER OF STOCK BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
0 | ||||
8 | SHARED VOTING POWER
2,623,485 | |||||
9 | SOLE DISPOSITIVE POWER
0 | |||||
10 | SHARED DISPOSITIVE POWER
2,623,485 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,623,485 | |||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN STOCK ☐
| |||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.5% | |||||
14 | TYPE OF REPORTING PERSON
CO |
CUSIP No. 66988N106 | 13D | Page 2 of 7 Pages |
1 | NAMES OF REPORTING PERSONS
Malin Corporation, plc | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS
OO | |||||
5 | Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e) ☐
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Ireland | |||||
NUMBER OF STOCK BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7 | SOLE VOTING POWER
0 | ||||
8 | SHARED VOTING POWER
2,623,485 | |||||
9 | SOLE DISPOSITIVE POWER
0 | |||||
10 | SHARED DISPOSITIVE POWER
2,623,485 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,623,485 | |||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN STOCK ☐
| |||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.5% | |||||
14 | TYPE OF REPORTING PERSON
CO |
CUSIP No. 66988N106 | 13D | Page 3 of 7 Pages |
Item 1. | Security and Issuer |
This statement on Schedule 13D (Schedule 13D) relates to the common stock (the Common Stock), of Novan, Inc., a corporation formed under the laws of Delaware (the Issuer), whose principal executive offices are located at 422 Emperor Blvd. Suite 470 Durham, North Carolina, 27703.
Item 2. | Identity and Background |
This statement is being filed by the following persons (each a Reporting Person and, collectively, the Reporting Persons):
Malin Life Sciences Holdings Limited (Malin Life Sciences or the Record Holder) and Malin Corporation, plc (Malin plc).
Each of the Reporting Persons is organized under the laws of Ireland. The business address of each of the Reporting Persons is 2 Harbour Square, Crofton Road, Dun Laoghaire Co., Dublin, Ireland. The Reporting Persons are principally engaged in the business of investments in securities.
The executive officers of Malin Life Sciences are John Given, Kelly Martin, Adrian Howd, Darragh Lyons and Sean Murphy (the Malin Life Sciences Executive Officers). The directors of Malin Life Sciences are John Given, Kelly Martin, Adrian Howd, Darragh Lyons, Liam Daniel and Sean Murphy (the Malin Life Sciences Directors, and together with the Malin Life Sciences Executive Officers, the Malin Life Sciences Persons).
The executive officers of Malin plc are John Given, Kelly Martin, Adrian Howd and Darragh Lyons (the Malin plc Executive Officers). The directors of Malin plc are John Given, Kelly Martin, Adrian Howd, Darragh Lyons, Liam Daniel, Owen Hughes, Robert A. Ingram, Kieran McGowan and Kyran McLaughlin (the Malin plc Directors, together with the Malin Life Sciences Persons and the Malin plc Executive Officers, the Related Persons).
During the last five years, none of the Reporting Persons or Related Persons (i) has been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Item 3. | Source and Amount of Funds or Other Consideration |
Prior to the Issuers initial public offering (the IPO), Malin Life Sciences purchased 1,823,485 shares of Mezzanine A Stock of the Issuer, which were converted automatically on a 1-to-1 basis upon the closing of the IPO. Additionally, Malin Life Sciences purchased 800,000 shares of Common Stock in the IPO at $11.00 per share for an aggregate purchase price of USD $8,800,000, pursuant to the provisions of the underwriting agreement (the Underwriting Agreement) among the Issuer and the several underwriters for the IPO (the Underwriters).
CUSIP No. 66988N106 | 13D | Page 4 of 7 Pages |
Malin Life Sciences obtained the funds for the purchase of the Common Stock through an intra group loan from Malin plc, which in turn received the funds through the issuance of shares to its shareholders.
Item 4. | Purpose of Transaction |
General
The Reporting Persons acquired the securities described in this Schedule 13D for investment purposes and they intend to review their investments in the Issuer on a continuing basis. Any actions the Reporting Persons might undertake will be dependent upon the Reporting Persons review of numerous factors, including, but not limited to: an ongoing evaluation of the Issuers business, financial condition, operations and prospects; price levels of the Issuers securities; general market, industry and economic conditions; the relative attractiveness of alternative business and investment opportunities; and other future developments.
The Reporting Persons may, at any time and from time to time, acquire additional securities of the Issuer, or retain or sell all or a portion of the securities then held, in the open market or in privately negotiated transactions. In addition, the Reporting Persons or their designees to the Issuers board of directors may engage in discussions with management, the board of directors, and shareholders of the Issuer and other relevant parties or encourage such persons to consider or explore extraordinary corporate transactions, such as: a merger; sales or acquisitions of assets or businesses; changes to the capitalization or dividend policy of the Issuer; or other material changes to the Issuers business or corporate structure.
Lock-Up Agreement
Malin Life Sciences Holdings Limited entered into a letter agreement with the Issuer and the Underwriters on August 26, 2016 (the Lock-Up Agreement). Pursuant to such agreement Malin Life Sciences agreed, without the prior written consent of Piper Jaffray & Co. and subject to limited exceptions, not to (i) directly or indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of, or announce the intention to otherwise dispose of, any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock; (ii) enter into any swap, hedge or similar agreement or arrangements that transfers in whole or in part, the economic risk of ownership of shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock, to which Malin Life Sciences has or hereafter acquires the power of disposition; (iii) or to engage in any short selling of the Common Stock or securities convertible into or exercisable or exchangeable for Common Stock for a period of 180 days after the IPO.
The foregoing description of the Lock-Up Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of such agreement filed as an exhibit to this Schedule 13D, and incorporated herein by reference.
Malin Life Sciences has appointed two directors to serve on the Issuers board of directors.
CUSIP No. 66988N106 | 13D | Page 5 of 7 Pages |
Other than as described above, none of the Reporting Persons currently has any plans or proposals that relate to, or would result in, any of the matters listed in Items 4(a)(j) of Schedule 13D, although, depending on the factors discussed herein, the Reporting Persons may change their purpose or formulate different plans or proposals with respect thereto at any time.
Item 5. | Interest in Securities of the Issuer |
(a) (b)
The following sets forth the aggregate number and percentage of Common Stock beneficially owned by each of the Reporting Persons, as well as the number of Common Stock as to which each Reporting Person has the sole power to vote or to direct the vote, shared power to vote or to direct the vote, sole power to dispose or to direct the disposition, or shared power to dispose or to direct the disposition of, as of the date hereof, based on 15,938,659 shares of Common Stock outstanding as of September 26, 2016.
Reporting Person |
Amount beneficially owned |
Percent of class |
Sole power to vote or to direct the vote |
Shared power to vote or to direct the vote |
Sole power to dispose or to direct the disposition of |
Shared power to dispose or to direct the disposition of | ||||||
Malin Life Sciences Holdings Limited | 2,623,485 | 16.46% | 0 | 2,623,485 | 0 | 2,623,485 | ||||||
Malin Corporation plc |
2,623,485 | 16.46% | 0 | 2,623,485 | 0 | 2,623,485 |
Malin Life Sciences is the Record Holder of 2,623,485 shares of Common Stock. Malin Life Sciences is the wholly owned subsidiary of Malin plc, an Irish public limited company traded on the Irish Stock Exchange. As such, Malin plc may be deemed to beneficially own the Common Stock held of record by Malin Life Sciences.
Except as set forth in this Item 5(a)-(b), each of the persons named in this Item 5(a)-(b) disclaims beneficial ownership of any Common Stock owned beneficially or of record by any other person named in this Item 5(a)-(b).
(c) Except for the acquisition of 800,000 shares of Common Stock in the IPO described in Item 3, during the past 60 days none of the Reporting Persons or Related Persons has effected any transactions in the Common Stock.
(d) None.
(e) Not Applicable.
CUSIP No. 66988N106 | 13D | Page 6 of 7 Pages |
Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer |
Item 4 above summarizes certain provisions of the Lock-Up Agreement and is incorporated herein by reference. A copy of the agreement is attached as an exhibit to this Schedule 13D, and incorporated herein by reference.
Except as set forth herein, none of the Reporting Persons or Related Persons has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Issuer, including, but not limited to, any contracts, arrangements, understandings or relationships concerning the transfer or voting of such securities, finders fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies.
Item 7. | Materials to be Filed as Exhibits |
Exhibit Number |
Description | |
1 | Joint Filing Agreement | |
2 | Lock-Up Agreement |
CUSIP No. 66988N106 | 13D | Page 7 of 7 Pages |
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: October 6, 2016
Malin Life Sciences Holdings Limited | ||
By: | /s/ Darragh Lyons | |
Name: | Darragh Lyons | |
Title: | Director | |
Malin Corporation plc | ||
By: | /s/ Padraic Roche | |
Name: | Padraic Roche | |
Title: | Company Secretary |
Exhibit 1
JOINT FILING AGREEMENT
The undersigned hereby agree that they are filing this statement jointly pursuant to Rule 13d-1(k)(1). Each of them is responsible for the timely filing of such Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning such person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate.
In accordance with Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with each other on behalf of each of them of such a statement on Schedule 13D with respect to the Common Stock beneficially owned by each of them of Novan, Inc. This Joint Filing Agreement shall be included as an exhibit to such Schedule 13D.
IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing Agreement as of the 6th day of October, 2016.
Malin Life Sciences Holdings Limited | ||
By: | /s/ Darragh Lyons | |
Name: | Darragh Lyons | |
Title: | Director | |
Malin Corporation plc | ||
By: | /s/ Padraic Roche | |
Name: | Padraic Roche | |
Title: | Company Secretary |
Exhibit 2
August 26, 2016
PIPER JAFFRAY & CO.
As Representative of the several Underwriters
c/o Piper Jaffray & Co.
345 Park Avenue, 12th Fl.
New York, New York 10154
Re: | Novan, Inc. Registration Statement on Form S-1 for Shares of Common Stock |
Dear Sir or Madam:
This letter agreement (this Agreement) is being delivered to you in connection with the proposed Underwriting Agreement (the Underwriting Agreement) by and among Novan, Inc., a Delaware corporation (the Company), and Piper Jaffray & Co. (Piper Jaffray) as representative (the Representative) of a group of underwriters (collectively, the Underwriters), to be named therein, and the other parties thereto (if any), relating to the proposed public offering of shares of the common stock (the Offering), par value $0.0001 per share (the Common Stock), of the Company pursuant to a registration statement (the Registration Statement) filed or to be filed with the Securities and Exchange Commission (the SEC).
In order to induce you and the other Underwriters to enter into the Underwriting Agreement, and in light of the benefits that the offering of the Common Stock will confer upon the undersigned in its capacity as a securityholder and/or an officer, director or employee of the Company, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees with each Underwriter that, during the period beginning on the date hereof through and including the date that is the 180th day after the date of the Underwriting Agreement (the Lock-Up Period), the undersigned will not, without the prior written consent of the Representative, directly or indirectly, (i) offer, sell, assign, transfer, pledge, contract to sell, or otherwise dispose of, or announce the intention to otherwise dispose of, any shares of Common Stock (including, without limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations promulgated under the Securities Act of 1933, as amended (such shares, the Beneficially Owned Shares, and such act, the Securities Act)), or securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap, hedge or similar agreement or arrangement that transfers in whole or in part, the economic risk of ownership of the Beneficially Owned Shares or securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or (iii) engage in any short selling of the Common Stock or securities convertible into or exercisable or exchangeable for Common Stock.
If the undersigned is an officer or director of the Company, (i) the Representative agrees that, at least three (3) business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, the Representative will notify the Company of the impending release or waiver, and (ii) the Company has agreed or will agree in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two (2) business days before the effective date of the release or waiver. Any release or waiver granted
by the Representative hereunder to any such officer or director shall only be effective two (2) business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer.
The restrictions set forth in the second paragraph shall not apply to:
(1) if the undersigned is a natural person, any transfers made by the undersigned (a) as a bona fide gift to any member of the immediate family (as defined below) of the undersigned or to a trust the direct or indirect beneficiaries of which are exclusively the undersigned or members of the undersigneds immediate family, (b) by will or intestate succession upon the death of the undersigned or by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement or (c) as a bona fide gift to a charity or educational institution;
(2) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfers to any stockholder, partner or member of, or owner of a similar equity interest in, the undersigned, as the case may be, if, in any such case, such transfer is not for value;
(3) if the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer made by the undersigned (a) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigneds capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigneds assets, in any such case not undertaken for the purpose of avoiding the restrictions imposed by this Agreement or (b) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate (as defined below) of the undersigned or to any investment fund or other entity that controls or manages the undersigned, in each case in a transaction not involving a transfer for value;
(4) if the undersigned is a trust, distributions of shares of Common Stock or any security directly or indirectly convertible into Common Stock to a trustee or the beneficiaries or to the estate of a beneficiary of such trust in a transaction not involving a disposition for value; provided that no filing by the transferor or transferee under the Exchange Act, or other public announcement shall be required or shall be made voluntarily in connection with such distribution until after the expiration of the Lock-Up Period;
(5) transfers of shares of Common Stock or other securities to the Company in connection with the vesting or exercise of any equity awards granted pursuant to an equity incentive or other plan described in the Registration Statement and held by the undersigned to the extent as may be necessary to satisfy tax withholding obligations pursuant to the Companys equity incentive or other plans; provided that in the case of any such transfer, no filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock shall be required, and no such filing shall be made voluntarily, in each case, prior to the expiration of the Lock-Up Period;
(6) transfers to the Company pursuant to agreements under which the Company has an option to repurchase such securities, or a right of first refusal with respect to the transfers of such securities; provided that if the undersigned is required to file a report under the Exchange Act, or any other public announcement, reporting such repurchase, the undersigned shall include a statement in such report to the effect that such repurchase was made under terms of the Companys repurchase rights upon termination of the undersigned;
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(7) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Common Stock, provided that such plan does not provide for the transfer of Common Stock during the Lock-Up Period, and provided further that no public announcement of the establishment or existence of such plan, and no filing with the SEC or any other regulatory authority in respect thereof, shall be required, and no such public announcement or filing shall be made voluntarily, in each case, prior to the expiration of the Lock-Up Period;
(8) the receipt by the undersigned of shares of Common Stock in connection with the conversion of the outstanding shares of preferred stock of the Company into Common Stock, provided that any such Common Stock received upon such conversion shall be subject to the provisions of this Agreement;
(9) (a) transactions relating to securities acquired in open market transactions after the date of the Offering or (b) if the undersigned is not an officer or director of the Company, transfers or other dispositions of shares of Common Stock purchased by the undersigned in the Offering; provided that in the case of any such transactions, transfers or dispositions, no public announcement thereof, and no filing with the SEC or any other regulatory authority in respect thereof, shall be required, and no such public announcement or filing shall be made voluntarily, in each case, prior to the expiration of the Lock-Up Period;
(10) transfers pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of the Companys capital stock involving a Change of Control (as defined below) of the Company that is approved by the Board of Directors of the Company (including, without limitation, the entry into any lock-up, voting or similar agreement pursuant to which the undersigned may agree to transfer, sell, tender or otherwise dispose of Common Stock or other such securities in favor of any such transaction, or vote any securities in favor of such transaction); provided that in the event that the tender offer, merger, consolidation or other such transaction is not completed, the Common Stock owned by the undersigned shall remain subject to the restrictions contained in this Agreement; and
(11) transfers of Common Stock to the Company in connection with the payment of tax liabilities related to the spin-off transaction of KNOW Bio, LLC as contemplated by the Registration Statement; provided that in the case of any such transfer, no filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock shall be required, and no such filing shall be made voluntarily, in each case, prior to the expiration of the Lock-Up Period;
provided, however, that in the case of any transfer described in clause (1), (2), (3) or (4) above, it shall be a condition to the transfer that (A) the transferee executes and delivers to Cowen, acting on behalf of the Underwriters, not later than one (1) business day prior to such transfer, a written agreement, in substantially the form of this Agreement (it being understood that any references to immediate family in the agreement executed by such transferee shall expressly refer only to the immediate family of the undersigned and not to the immediate family of the transferee) and otherwise satisfactory in form and substance to the Representative, and (B) in the case of any transfer described in clause (1) or (2) above, if the undersigned is required to file a report under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock or Beneficially Owned Shares or any securities convertible into or exercisable or exchangeable for Common Stock or Beneficially Owned Shares during the Lock-Up Period, the undersigned shall include a statement in such report to the effect that, (A) in the case of any transfer pursuant to clause (1) above, such transfer is being made as a gift or by will or intestate succession or by operation of law, (B) in the case of any transfer pursuant to clause (2) above, such transfer is being made to a stockholder, partner or member of, or owner of a similar equity interest in, the undersigned and is not
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a transfer for value, and (C) in the case of any transfer pursuant to clause (3) above, such transfer is being made either (a) in connection with the sale or other bona fide transfer in a single transaction of all or substantially all of the undersigneds capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigneds assets or (b) to another corporation, partnership, limited liability company or other business entity that is an affiliate of the undersigned and such transfer is not for value. For purposes of this paragraph, immediate family shall mean a spouse, domestic partner, child, grandchild or other lineal descendant (including by adoption), father, mother, brother or sister of the undersigned or other relationship not more remote than first cousin; and affiliate shall have the meaning set forth in Rule 405 under the Securities Act. For purposes of this Agreement, Change of Control shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons (other than an Underwriter pursuant to the Offering), of the Companys voting securities if, after such transfer, such person or group of affiliated persons would hold more than 90% of the outstanding voting securities of the Company (or the surviving entity).
For avoidance of doubt, nothing in this Agreement prohibits the undersigned from exercising any options or warrants to purchase Common Stock (which exercises may be effected on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis), it being understood that any Common Stock issued upon such exercises will be subject to the restrictions of this Agreement.
In order to enable this covenant to be enforced, the undersigned hereby consents to the placing of legends or stop transfer instructions with the Companys transfer agent with respect to any Common Stock or securities convertible into or exercisable or exchangeable for Common Stock.
The undersigned further agrees that it will not, during the Lock-Up Period, make any demand or request for or exercise any right with respect to the registration under the Securities Act, of any shares of Common Stock or other Beneficially Owned Shares or any securities convertible into or exercisable or exchangeable for Common Stock or other Beneficially Owned Shares. The undersigned hereby waives any and all preemptive rights, registration rights, participation rights, resale rights, rights of first refusal or similar rights that the undersigned may have in connection with the Offering or with any issuance or sale by the Company of any equity or other securities before such Offering. The undersigned further waives any related notice requirements pursuant to any agreement, understanding, or otherwise to which the undersigned is a party.
This Agreement and all authority herein conferred are irrevocable and shall survive the death or incapacity of the undersigned and shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Agreement and that this Agreement has been duly authorized (if the undersigned is not a natural person), executed and delivered by the undersigned and is a valid and binding agreement of the undersigned. This Agreement and all authority herein conferred are irrevocable and shall survive the death or incapacity of the undersigned (if a natural person) and shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.
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The undersigned hereby consents to receipt of this Agreement in electronic form and understands and agrees that execution and delivery of this Agreement by facsimile transmission, electronic mail or other electronic transmission is legal, valid and binding for all purposes. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in such state.
If (i) either the Company, on the one hand, or Cowen or Piper Jaffray, on the other hand, has advised in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Offering, (ii) the Company withdraws the Registration Statement or deregisters all of the shares covered by the Registration Statement, (iii) the Underwriting Agreement is not executed by September 30, 2016, provided that the Company may by written notice to the undersigned prior to September 30, 2016 extend such date for a period of up to three additional months, or (iv) the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated for any reason prior to payment for and delivery of any Common Stock to be sold thereunder, then this Agreement shall immediately be terminated and the undersigned shall automatically be released from all of his or her obligations under this Agreement. The undersigned acknowledges and agrees that whether or not any public offering of Common Stock actually occurs depends on a number of factors, including market conditions.
[Signature page follows]
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Very truly yours, | ||
Malin Life Sciences Holdings Limited | ||
(Name of Stockholder Please Print) | ||
/s/ Padraic Roche | ||
(Signature) | ||
Padraic Roche | ||
(Name of Signatory if Stockholder is an entity Please Print) | ||
General Counsel & Company Secretary | ||
(Title of Signatory if Stockholder is an entity Please Print) | ||
Address: |
2 Harbour Square, | |
Dun Laoghaire | ||
Co. Dublin, Ireland |
[SIGNATURE PAGE TO NOVAN, INC. LOCK-UP AGREEMENT]